JUDGMENT

Rajeshwari Prasad, J. - This is a plaintiff's appeal against the decree passed by the Civil Judge Etah dated 27th August, 1953 in Civil Appeal No. 156 of 1952 arising out of Original Suit No. 115 of 1947 of the court of Munsif Etah.

2. The plaintiff-appellants filed the suit giving rise to this second appeal on the 26th February, 1947 and sought a decree for cancellation of two pattas executed in favour of Ram Prakash respondent. One of the said pattas was executed by Shrimati Abbasi Begum on her own behalf as well as guardian of Shrimati Zubbeda, Shrimati Rubbeda, Shrimati Alia and Ejaz Ali who were her children. The other patta was executed by Hafiz Ali. These two pattas related to grove No. 70/1 which was earlier part of grove No. 70. The plaintiffs alleged that on the 10th June 1935, Mahfooz Fatma shown in the pedigree relied upon by the plaintiff transferred her interest in the grove by means of a sale deed to Shrimati Hashmat Bibi and Shrimati Kaniz Fatma. The plaintiffs therefore alleged that they were co-sharers in the Khewat and in grove No 70/1 and as the pattas in question had not been executed by all the co-sharers, they were invalid.

3. Ram Prakash, the defendant pleaded that the pattas were valid and that he had at least become the tenant of the arazi covered by leases. It was also alleged by the defendant that the share of Hafiz Ali in the grove in suit had been separated by means of a private partition and chat therefore the lease executed by him was valid in all respect. It may also be mentioned that there was another Suit, being Suit No. 645 of 1946 which had been filed by Ram Prakash against the plaintiffs of the present suit for recovery of possession over the land covered by the two leases granted to him as well as for injunction, damages and for some other reliefs. The learned Mnnsif dismissed Suit No 645 of 1946 and decreed suit No. 115 of 1947 which has given rise to the present second appeal.

4. When the matter went before the lower appellate court, the lower appellate court by a common judgment decreed the suit of Ram Prakash i.e. Suit No. 645 of 1946 for joint possession over the grove in suit to the extent of the interest of Shrimati Abbasi Begum and Hafiz Ali. The decree granted in Suit No. 115 of 1947 by the lower appellate court declared that the leases in question were not binding on the plaintiffs of Suit No. 115 of 1947 but that they were binding against the interest of Shrimati Abbasi Begum and Hafiz Ali. Two appeals were filed in this court and the present appeal is an appeal arising out of Suit No. 115 of 1947. So far as the other connected appeal, being Second Appeal No. 2350 is concerned, the hearing of that appeal has been stayed under Sec. 5 of the U.P. Consolidation of Holdings Act.

5. Mr. Shambhoo Prasad learned counsel for the respondents before me conceded that the two leases could not affect the share and interest of such other co-sharers who were not the lessors of Ram Prakash. According to him, the controversy in the second appeal is only relating to the share and interest of Shrimati Abbasi and Shri Hafiz Ali, who were the lessors of Sri Ram Prakash.

6. On behalf of the appellants, learned counsel contended that the leases were absolutely void under Sec. 246 of the U.P. Tenancy Act and the share and interest of the actual lessors also were not effected by the said transaction. Sri Ram Prakash, the lessee was not entitled even to a joint possession of the property in suit. The argument is that as all the co-sharers had not joined in executing the lease as required by Sec. 246 of the U.P. Tenancy Act, the leases were unenforceable against the lessors also.

7. The learned counsel for the respondents further conceded that the concurrent finding of the two courts below that there was no partition between the co-sharers of the grove in suit, is a finding which he cannot question in second appeal. He, however, contended that the leases in question were not leases for cultivator